Friday, 8 April 2011

Court's Opinion for the Upcoming Izmir Conference

In the preparations for the upcoming Izmir high level conference in Turkey (under the Turkish chairmanship of the Council of Europe), the European Court of Human Rights has issued an 'Opinion' which reflect its input and views for that meeting. The Izmir conference is following up on last year's conference in Interlaken in Switzerland on the ongoing reforms of the European system of human rights protection. According to the website on the Izmir conference, the conference has three goals in the context of maintaining the momentum for reforms:

"The first is to make a preliminary assessment of the impact of Protocol No. 14. The second is to take stock of what has been achieved by the reform process launched by the Interlaken conference in February 2010 and the third is to reflect upon further ideas for pursuing that reform."

In that context the Court has now made public its views on a range of matters. The Opinion starts with setting out that the reforms of Protocol 14 (which entered into force in 2010) are "encouraging" but will "not provide a lasting and comprehensive solution to the problems facing the Convention system." It re-emphasizes that subsidiarity is a core aspect of human rights protection: first and foremost human rights should be ensured at the national level. But it adds, importantly, that subsidiarity "cannot be unconditional and unilateral". It only works if states do secure rights in practice and offer effective remedies and execute the Court's judgments. The Court refers to this as a shared responsibility for human rights. It also indicates that it exercises ultimate control on whether an applicant's rights have been effectively respected. Here the Court balances on a fine line between Scylla and Charybdis: on the one hand an effective protection on the national level (and thus true subsidiarity) is needed in order for human rights to be protected nationally and in order to avoid a further growth in cases coming to Strasbourg. On the other hand one can clearly read between the lines that the Court is wary of subsidiarity being used by states to weaken the human rights protection system (emphasing national protection while not taking it too seriously).

A second important issue is the Court's own emphasis on its independence as a core principle of the rule of law. No reform must lead to lesser respect for judicial independence. The Court explicitly notes that the proposals for a possible Statute of the Court (which would be easier to change than the Convention itself, but would not be in the Court's own hands as for example its own Rules of Court are). Such a Statute which would deal with procedural issues and would be more flexible than the cumbersome ways of changing the Convention by Protocol (as the very problematic and slow entry into force of Protocol 14 has shown), but it would also potentially strengthen the grip of the Committee of Ministers over the Court. Since there are currently ongoing discussions in a few of the state parties to the ECHR pleading for a more active role of the Committee of Ministers, e.g. by circumscribing even materially the extent of the margin of appreciation or the scope of certain rights, the Court's worries do not fall out of the blue (although that latter discussion is not mentioned in the Court's opinion document). The Court notes that "it has concerns about the direction this initiative is taking and it reiterates its wish to be closely involved in the discussion" - diplomatic language reflecting that the judges are very concerned.

As to ways which have been suggested to avoid nonsensical claims being taken to Strasbourg, it is interesting to note that the Court explicitly opposes the introduction of fees for applicants, both on grounds of principle and because it would add extra administrative burdens. Here the Court thus clearly takes the same view as a consortium of human rights NGOs which are strongly lobbying against such fees. The Court does add that another method, compulsory representation by a lawyer, could be a good alternative. Such a system should be accompanied - and very rightly so, I would add - by appropriate legal aid facilities at the national level. This would be a conditio sine qua non.

Another notable point is that the Court is in principle positive about the option of "advisory opinions" at the request of national courts. Such a procedure would be roughly comparable to the preliminary reference procedure of the Court of Justice of the European Union. The Court thinks this should be further explored and asks to be closely involved in exploring this option. Obviously, as the Court acknowledges, such a procedure would initially mean more work but would in the long run enforce subsidiarity.

At the conference itself the Court will be represented by amongst others its president, who has been given ten minutes speaking time.

I have not yet been able to find an online version of the opinion but will add a link to it as soon as it becomes available.